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The Attorneys

About the Case

The Attorneys

The lawyers at Gibson Dunn first became aware of the teacher unions’ practice of bundling political activities with job-related benefits in their dues structure while preparing for Vergara v. California — a lawsuit brought by California public-school students challenging five seniority statutes that harm low-income children by entrenching grossly ineffective teachers in their schools. Recognizing the practice as coercive and unconstitutional, they agreed to represent the teacher plaintiffs.

Most of the Bain v. CTA team are drawn from Gibson Dunn’s Appellate and Constitutional Law practice and have served as U.S. Supreme Court clerks. They include:

Theodore J. Boutrous, Jr.

Theodore J. Boutrous, Jr. is a partner in the Los Angeles office of Gibson, Dunn & Crutcher. He is Co-Chair of the firm’s Appellate and Constitutional Law Group and Transnational Litigation Group, as well as a member of the Crisis Management Group. He is also a member of the firm’s Executive and Management Committees.

Mr. Boutrous has represented clients in the federal and state appellate courts throughout the nation in a wide spectrum of cases. He has argued more than 75 appeals, including before the Supreme Court of the United States, 11 different federal circuit courts of appeals, eight different state supreme courts and a multitude of other appellate and trial courts. He has successfully persuaded courts to overturn some of the largest jury verdicts and class actions in history. In 2011, he successfully represented Walmart before the Supreme Court of the United States in the Dukes case, which unanimously reversed what had been the largest employment class action in history and established important standards governing class actions (Wal-Mart Stores, Inc. v. Dukes). In 2013, he successfully represented the prevailing party in obtaining a unanimous Supreme Court decision enforcing the Class Action Fairness Act (Standard Fire Insurance Co. v. Knowles). Also in 2013, Mr. Boutrous successfully represented plaintiffs in the Supreme Court in a case invalidating California’s prohibition on same-sex marriage, Proposition 8 (Hollingsworth v. Perry). In other ongoing constitutional litigation, Mr. Boutrous won a landmark trial victory on behalf of California schoolchildren asserting a state constitutional challenge to laws that prevent school administrators from hiring and retaining the most effective teachers (Students Matter Website).

Mr. Boutrous also represents media organizations, reporters, and others in First Amendment matters such as reporters’ privilege battles, defamation cases, litigation seeking public access to judicial records and court proceedings, and asylum proceedings for journalists in danger.

As both a crisis management strategist and a seasoned appellate and media lawyer, Mr. Boutrous has extensive experience handling high-profile litigation, media relations and media legal issues. He routinely advises clients in planning how to respond, and in responding, to crises and other especially significant legal problems that attract the media spotlight. According to The National Law Journal, which in 2013 named him one of the “100 Most Influential Lawyers in America,” he “is known for his wise, strategic advice to clients in crisis and is a media law star.”

Mr. Boutrous is a Fellow of the American Academy of Appellate Lawyers. Chambers USA ranks Mr. Boutrous as a leading lawyer in five different categories, describing him as “a combination of smart and pragmatic” with “a complete command of the facts and law,” a “true innovator,” a “go-to guy on cutting-edge cases,” a “formidable litigator,” and “a hugely accomplished appellate lawyer . . . familiar with appeals at all levels and venues.” Legal 500 has named Mr. Boutrous a “Leading Lawyer” for Supreme Court and Appellate litigation for the past three years in a row, calling him a “renowned advocate” and “the preeminent authority on punitive damages defenses in the U.S.” In 2012, Mr. Boutrous was named an “Attorney of the Year” by both the California Lawyer and the San Francisco Recorder, and the Los Angelesand San Francisco Daily Journals named Mr. Boutrous one of the 100 best lawyers in California for the tenth year in a row. In naming him to its list of the 500 Leading Lawyers in America, Lawdragon calls him “One of the best media and appellate attorneys in the nation.” And the Los Angeles Business Journal describes him as “one of the nation’s most prominent appellate attorneys.”

Mr. Boutrous is a member of the Board of Directors of the International Women’s Media Foundation and the Board of Directors of the California Supreme Court Historical Society. He also is a member of the Business Advisory Council of ProPublica, a non-profit newsroom that produces investigative journalism.

Mr. Boutrous received his law degree, summa cum laude, from the University of San Diego School of Law in 1987, where he was Valedictorian and Editor-in-Chief of the San Diego Law Review.

Marcellus Antonio McRae

Marcellus Antonio McRae is a partner in the Los Angeles office of Gibson, Dunn & Crutcher. He is a member of the firm’s White Collar Defense and Investigations, Government Contracts, Media, Entertainment and Technology, and International Trade and Regulation Compliance Practice Groups. Mr. McRae’s litigation and white-collar criminal defense practices focus on a wide variety of business disputes, internal investigations, and criminal prosecutions including defense of individuals and corporations in cases involving allegations of: financial fraud, false claims act violations, public corruption, violations of federal and state environmental laws, health care fraud, wrongful death, criminal antitrust violations, and other matters. He also represents and advises employers in wrongful termination, retaliation, and whistleblower claims.

Mr. McRae has first chaired numerous jury trials, bench trials, and arbitrations in both federal and state courts. He also writes and speaks on trial and litigation skills, white-collar criminal defense, labor and employment law, and other topics. From 1995 until joining Gibson, Dunn & Crutcher in February 1998, Mr. McRae served as an Assistant United States Attorney with the Criminal Division, Major Frauds Section, of the United States Attorney’s Office in Los Angeles. While he was an Assistant United States Attorney, Mr. McRae investigated and prosecuted complex white-collar crimes (tax, securities, bankruptcy, and other business frauds) and traditional crimes that involved both jury and non-jury trial experience with a 100 percent conviction rate at trial. He also drafted numerous appellate briefs filed in the Ninth Circuit Court of Appeals and had several arguments before the Ninth Circuit Court of Appeals. Prior to joining the United States Attorney’s Office, Mr. McRae was an associate with Debevoise & Plimpton.

Some of Mr. McRae’s achievements include:

Trials and Litigation

Successfully represented as co-lead trial counsel California schoolchildren in Vegara v. State of California in asserting a state constitutional challenge to laws that prevent school administrators from hiring and retaining the most effective teachers (Students Matter Website).

Successful defense at trial of Vestin Realty Mortgage I and II in a nationwide class action alleging that the merger of funds into the trusts constituted a “roll up.”

Successful defense of Nutro Products, Inc. in an eight-week jury trial in a mass action in which homeowners claimed that the company’s production facility emitted a nuisance odor.

Representation of an I.R.A. administrator in a class action against claims that it aided and abetted a fraud against investors.

Representation of Pacific Maritime Association and members in a federal court action involving claims of gender and race discrimination, harassment and retaliation.

Successful defense of Dean Witter Reynolds, Inc. in a jury trial against allegations that it defrauded California Union Insurance Company into issuing performance and property coverage on several wind turbine farms.

Successful defense at trial of a film and television celebrity in a palimony action.

Representation of Deloitte & Touche LLP in a state court action involving allegations of age and race discrimination.

Successful defense of ITT Educational Services in a False Claims Act retaliatory discharge action both at the trial level by obtaining summary judgment and at the appellate level by securing affirmance of the summary judgment ruling.

Representation of PricewaterhouseCoopers in a state court action involving allegations of gender discrimination and failure to promote.

Representation of United Parcel Service in a state court action involving allegations of sexual harassment.

Successful defense of one of the world’s leading media and entertainment companies in a three-week arbitration involving claims for profit participation in a syndicated series.

Represented clients in an appeal of an Unruh Act judgment in which the appellate court reversed the award of punitive damages and the attorneys’ fees award.

Successful defense of ConAgra Foods, Inc. in a four-week jury trial involving breach of contract and fraud claims arising from the termination of a beef distribution relationship.

Represented one of the leading watch manufacturers and one of the world’s largest retailers in a federal trademark infringement litigation.

White Collar Defense and Investigations

Counseled multinational corporations in various aspects of the Foreign Corrupt Practices Act.

Represented domestic and international clients in export control enforcement matters and investigations.

Professional and Community Associations

Mr. McRae is currently a member of the Pacific Council on International Policy; the Board of Advocates of Human Rights First; and on the Boards of Directors of Public Counsel and Big Brothers Big Sisters. He was also a Deputy General Counsel to the Citizens’ Commission on Jail Violence for the County of Los Angeles. Mr. McRae was Co-Chair from 2003-04 of the Lawyer Delegates to the Ninth Circuit – Central District of California. He is also a former Co-Chair of the firm’s White Collar Defense and Investigations Practice Group. He has served as an adjunct professor of Advanced Trial Advocacy at Loyola Law School, teaches trial advocacy at Harvard Law School, and was an instructor at the national level for the National Institute of Trial Advocacy. Mr. McRae has conducted mock jury trial demonstrations at numerous national American Law Institute-American Bar Association conferences and has been a featured panelist at many professional seminars regarding a wide range of topics including trial advocacy, individual and corporate criminal defense, federal sentencing guidelines, and employment litigation. He also frequently appears on television and radio and in print media as a legal commentator. Mr. McRae is currently a member of the Board of Trustees of the Los Angeles County Bar Association. He has also been a chair of the Environmental Crimes Committee for the West Coast Chapter of the American Bar Association and is a former member of the Board of Directors of the Federal Bar Association; the Executive Committee of the Criminal Justice Section of the Los Angeles County Bar Association; the Attorney Discipline Committee for the Central District of California; the Attorney Admissions Fund Board for the Central District of California; the Steering Committee of the California Minority Counsel Program; and the LAPD Police Commission Rampart Review Panel.

Speaking Engagements

Presentation to California School Boards Association, discussing the Vergara Case, San Francisco, CA, December 15, 2014

Presentation to California Association of Suburban School Districts, discussing the Vergara Case, San Francisco, CA, December 14, 2014

Presentation to the National Association of Black Educators, discussing the Vergara Case, Kansas City, MO, November 20, 2014

“Plaintiff attorney in the landmark Vergara case in Twin Cities to talk about teacher tenure,” Star Tribune, November 14, 2014

“Affirming the Fundamental, Constitutional Right of Every Student to Learn from Effective Teachers and Have an Equal Opportunity to Succeed in School,” Glendale Bar Association Dinner Meeting, October 1, 2014

“Getting the Best Education for All Our Kids: The Lawsuits That Could Transform American Public Schools,” panel, The Aspen Institute, Justice & Society Program, Washington, D.C., September 30, 2014

“Central African Republic and the Responsibility to Protect” panel, Pacific Council on International Policy, September 23, 2014

“Learning About Vergara, Part 1: The Plaintiff’s Perspective,” The Education & Law Society, University of California Los Angeles, September 22, 2014

“Setting the benchmark:LIBOR and the Upswing in International Financial Services and Securities Fraud Investigations and Prosecutions,” 16th Annual Transnational Crime Conference, International Bar Association, May 16, 2013

“Former Employees and Executives as Non-Party Witnesses: Navigating the Complexities of Privilege, Compensation, Cooperation with Counsel and Protection of Business Information,” Strafford Publications Webinar, October 11, 2011

“Elements of An Effective Compliance Program,” Annual Conference of the African Legal Network, November 22, 2005

Mr. McRae received his law degree from Harvard Law School in 1988. He earned a B.A. degree summa cum laude in 1985 from the University of California at Los Angeles, where he was elected to Phi Beta Kappa.

Joshua S. Lipshutz

Joshua S. Lipshutz is a partner in the San Francisco office of Gibson, Dunn & Crutcher. He currently practices in the firm’s Litigation Department and its Appellate and Constitutional Law Practice Group.

Mr. Lipshutz is experienced in representing clients before the Supreme Court of the United States, the Ninth Circuit Court of Appeals, and other state and federal appellate courts. He also has served as post-trial counsel in several state and federal courts, where he has obtained new trials and other relief from adverse verdicts. Recent appellate matters include:

Daimler AG v. Bauman (U.S. Supreme Court): Whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based on the in-State activities of a corporate subsidiary.

McDonald v. City of Chicago (U.S. Supreme Court): Whether state and local handgun bans violate the Second Amendment of the U.S. Constitution.

Vergara v. California (California Court of Appeal): Whether state tenure laws that prevent school administrators from hiring and retaining the most effective teachers violate students’ fundamental right to education under the California Constitution.

Mr. Lipshutz also maintains an active securities litigation practice. In recent matters, he has secured the dismissal of claims against the Financial Industry Regulatory Authority (“FINRA”), private equity firm Lone Star Funds, and other financial services clients. Mr. Lipshutz has represented financial services firms and other corporate clients in shareholder derivative and securities fraud actions under Delaware, New York and California law, the federal Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Company Act of 1940. Mr. Lipshutz has also successfully represented individuals pro bono in immigration matters.

Mr. Lipshutz served as a judicial clerk to the Honorable Alex Kozinksi of the United States Court of Appeals for the Ninth Circuit and to the Honorable Antonin Scalia of the Supreme Court of the United States. He graduated Order of the Coif from Stanford Law School, where he was Senior Articles Editor of the Stanford Law Review. He received his undergraduate degrees, summa cum laude, in finance and systems engineering from the University of Pennsylvania. Before practicing law, Mr. Lipshutz worked as a principal investment professional at Silver Lake Partners and as an investment banking associate at Goldman, Sachs & Co.

Mr. Lipshutz is admitted to practice law in the State of California and the Commonwealth of Massachusetts.

Joanna Powell

Ms. Powell is an associate in the San Francisco office of Gibson, Dunn & Crutcher. She currently practices in the firm’s Litigation Department.

Ms. Powell is a member of the Gibson Dunn team representing the plaintiffs in Vergara v. California, a lawsuit brought by California public school students challenging five state statutes that entrench grossly ineffective teachers in the public school system. Plaintiffs allege that these statutes, which impinge students’ fundamental right to education and have a disproportionate impact on low-income and minority students, violate their equal protection rights under the California Constitution.

Ms. Powell graduated in 2013 from New York University School of Law, where she was the Teach For America/Dewey & LeBoeuf Emerging Leader Scholar. She also served as Managing Editor of the N.Y.U. Review of Law & Social Change, Chair of the Education Law & Policy Society, and Musical Director of both Substantial Performance, the law school a cappella group, and Law Revue.

Prior to attending law school, Ms. Powell taught second grade in the Bronx through Teach For America. She received her Bachelor of Arts degree cum laude from Yale University, where she studied Political Science and graduated with honors in the major.

Ms. Powell is admitted to practice in the State of California. She is also a member of the bar of the Northern and Central Districts of California

Kyle Hawkins

Kyle Hawkins is a senior associate in the Dallas office of Gibson, Dunn & Crutcher. He practices in the firm’s Litigation Department and is a member of its Appellate and Constitutional Law Practice Group. He also serves on the firm-wide Associates Committee.

Mr. Hawkins maintains a nationwide appellate practice across federal and state courts. He has served as the primary architect and author of over a dozen appellate briefs, including merits briefing at the panel and en banc stages, petitions for panel rehearing and rehearing en banc, and other key appellate motions. Mr. Hawkins often practices before the U.S. Supreme Court, where he has authored briefs on behalf of parties and amici. He also has represented clients in the Texas Supreme Court and the Texas Court of Criminal Appeals.

In addition, Mr. Hawkins regularly handles case-dispositive motions and briefs in federal district courts. Most recently, he authored and argued the principal briefing in Houston Federation of Teachers v. Houston Independent School District (S.D. Tex.), defending a school district’s teacher evaluation system against a constitutional challenge brought by a labor union. As part of his defense-side civil practice, Mr. Hawkins has handled numerous motions to dismiss, pre- and post-trial motions for judgment as a matter of law, and oppositions to class certification.

Mr. Hawkins devotes a significant portion of his practice to pro bono matters. He has served as co-counsel to the First Liberty Institute representing clients in challenges against restrictions on religious liberty. He also has briefed and argued numerous cases on behalf of pro bono clients in federal immigration court and in state family court.

Before joining Gibson Dunn, Mr. Hawkins served as a law clerk to the Honorable Samuel A. Alito, Jr., of the Supreme Court of the United States, and to the Honorable Edith H. Jones, Chief Judge of the U.S. Court of Appeals for the Fifth Circuit. He also served as a 2014 Temple Bar Scholar at the Supreme Court of the United Kingdom in London. From 2011 to 2013, Mr. Hawkins worked as an associate in the firm’s Washington, D.C., office.

In 2009, Mr. Hawkins graduated summa cum laude from the University of Minnesota Law School, where he served as Editor-in-Chief of the Minnesota Law Review and was a member of Order of the Coif. In law school, Mr. Hawkins received the Class of 2009 Outstanding Contribution Prize and the William B. Lockhart Award for Excellence in Scholarship, Leadership, and Service. Mr. Hawkins graduated magna cum laude in 2002 from Harvard College with a Bachelor of Arts degree in History and Literature. Before attending law school, Mr. Hawkins worked in strategy consulting in Chicago, IL, and as an English teacher in Hiroshima, Japan.

Mr. Hawkins is admitted to practice law in Texas and New York. He also is admitted to practice before the Supreme Court of the United States and numerous federal courts of appeals and district courts.

Michael R. Huston

Michael Huston is an associate in the Washington, D.C. office of Gibson, Dunn & Crutcher. He is a member of the firm’s Appellate and Constitutional Law and Administrative Law and Regulatory practice groups.

Mr. Huston represents clients before the Supreme Court of the United States, the United States Courts of Appeals, and state appellate courts. He successfully petitioned the Supreme Court to grant certiorari in BNSF Railway Company v. Tyrrell, No. 16-405, and was the principal drafter of BNSF’s merits briefs. The Supreme Court ultimately ruled in favor of BNSF on all issues. In other matters before the Supreme Court, Mr. Huston has drafted briefs in opposition to certiorari and amicus curiae briefs. In the courts of appeals, Mr. Huston has drafted dozens of briefs across seven federal circuits, served as counsel of record, and delivered multiple oral arguments. Among other victories, Mr. Huston obtained an interlocutory appeal from the Seventh Circuit in Woodman’s Food Market Inc. v. The Clorox Sales Co., No. 15-3001, and then a unanimous reversal of the district court’s judgment in a total win for Clorox.

Mr. Huston’s administrative practice involves representing clients in rulemakings and other proceedings before administrative agencies, as well as litigating agency action. He drafted a significant portion of the petitioners’ brief to the D.C. Circuit in US Telecom Association v. FCC, No. 15-1063, which challenged the FCC’s “Net Neutrality” rule.

Mr. Huston regularly lectures and teaches on the Supreme Court and administrative law.

Before joining the firm, Mr. Huston served as a law clerk to the Honorable John G. Roberts, Jr., Chief Justice of the United States, and to the Honorable Raymond M. Kethledge of the United States Court of Appeals for the Sixth Circuit.

Mr. Huston graduated first in his class from the University of Michigan Law School, where he received the Henry M. Bates Memorial Scholarship Award—the law school’s highest honor. He served as an editor on the Michigan Law Review, where he published a note, and was the first runner-up in the 86th Campbell Moot Court Competition. He was elected to the Order of the Coif.

Mr. Huston graduated summa cum laude from the University of Arizona with a bachelor’s degree in political science and philosophy. He was elected Phi Beta Kappa.

Mr. Huston is admitted to practice in the District of Columbia and California.

Samuel Eckman

Samuel Eckman is an associate in the Los Angeles office of Gibson, Dunn & Crutcher. He is a member of the firm’s Appellate and Constitutional Law and Class Actions practice groups.

Before joining the firm, Mr. Eckman served as a law clerk to the Honorable Antonin Scalia, Associate Justice of the U.S. Supreme Court, and the Honorable Alex Kozinski, then-Chief Judge of the U.S. Court of Appeals for the Ninth Circuit.

Mr. Eckman graduated with High Honors from The University of Chicago Law School in 2013. While there, he served as Editor-in-Chief of The University of Chicago Law Review, and was selected as a Kirkland & Ellis Scholar and as a member of the Order of the Coif. He also was awarded a John M. Olin Student Fellowship in Law and Economics, and a Bradley Family Foundation Fellowship.